Final Report (September 1999) - Law Reform Commission of ...

REVIEW OF THE CRIMINAL

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM (4) A court granting leave to a declared litigant to institute proceedings or to continue should have a discretion to make such leave to issue or proceed conditional. (5) Available conditions on leave to issue or proceed should include: i. security for costs; ii. representation by counsel; and iii. a limit to the number of interlocutory proceedings initiated by a particular party in a claim or regarding a particular aspect of a claim. (6) The court’s discretion in making a conditional order for leave to issue or proceed should include making an order about particular litigation, a particular aspect of the litigation, a particular class of litigation, all litigation, or the commencement of any specified type of legal proceeding. This may include a particular person or class of persons forever or for a limited period. (7) Any court, of its own motion, at any stage of proceedings and without the need for an application under the Act (subject to natural justice being provided to the litigant) should have the power to make an order declaring the litigant malicious where it appears to the court there are proper grounds to make such an order. (8) Any court, tribunal or quasi-judicial body should be able to refer a matter to the Attorney General for consideration of an application being made under the Act where it appears to the court, tribunal or quasi-judicial body that there are proper grounds for such an application. (9) The litigant the subject of an action under the Act may be ordered to provide, on oath or affirmation, a schedule of all applications, motions, summonses, writs and appeals which the litigant has filed in any court or tribunal. In addition the litigant may be ordered to provide, on oath or affirmation, a schedule of all orders relating to such matters and a history of compliance, including final orders thereof and judgments and subsequent compliance. (10) Standing to bring an application to have a litigant declared malicious should include, along with the Attorney General, a registrar or equivalent in any court or tribunal covered by legislation, the DPP, or with the leave of the court any other interested or aggrieved person. 166

20 Evidence Why is there a law of evidence? What is the law of evidence? 20.1 Traditionally the laws and rules of evidence require a high degree of formal proof. These exacting standards exist so that only reliable evidence is allowed in court. The integrity of the justice system depends on the factfinder, whether judge or jury, basing decisions on dependable evidence. Hearsay is a prime example of the kind of evidence often excluded by the existing laws. Unless a person who made a particular statement can be questioned during trial, courts generally will not allow another witness to repeat or describe what that person said in an attempt to prove that what was said was true. The same complicated rules exclude written evidence. One of the reasons for these rules is so that the fact-finder can observe witnesses and evaluate their truthfulness. 20.2 Except where legislated not to apply, the law of evidence governs the reception and use of information in legal proceedings. Evidence law is a collection — even a mish-mash — of principles, rules and discretions, developed over many years and often in response to changing rationales. To further confuse matters, in Western Australia two evidentiary regimes apply. In the Federal courts, the reception of evidence is governed by the Evidence Act 1995 (Cth). In the State courts, the Evidence Act 1906 (WA) and the common law govern the reception of evidence. It is open for some cases to be heard in either the State courts of Western Australia or the Federal Court of Australia sitting at Perth. Litigants sometimes have a choice of where to institute proceedings. It is inefficient and unfair that the same case, conducted in the same State, potentially can be prepared and conducted on the basis of two different evidentiary regimes. 169